Vernon Hershberger's defense team says it will meet Wednesday deadline

Attorneys for raw-milk vendor Vernon Hershberger have appealed his conviction for violating a hold order placed on products in his farm store during a raid that could have sent him to jail.

The appeal filed Wednesday in District IV of the Wisconsin Court of Appeals raises seven issues stemming from Hershberger's conviction, including whether jurors weren't allowed to hear the whole story that defense attorneys wanted to present in the Sauk County Circuit Court case that attracted national attention.

In the late May trial, Hershberger was acquitted of three charges that included operating an unlicensed retail store and operating a dairy farm and dairy processing facility without licenses. He was found guilty of one misdemeanor charge of violating the hold order placed on raw milk and other products in his farm store during a June 2010 raid by the state Department of Agriculture, Trade and Consumer Protection.

Hershberger said he engaged in an act of civil disobedience when he cut the seals that state officials placed on coolers and shelves to keep him from distributing food products to members of the farm's private buying club.

He claimed there were practical reasons for violating the order, including getting food from the store for his family of 10 children and keeping it from spoiling during months of legal procedures.

State prosecutors said Hershberger flouted the law when he violated the hold order, and the order was necessary to keep him from distributing food that could be misbranded or adulterated.

During the five-day trial, a heavily redacted version of the hold order was submitted to the jury for their review. Hershberger's attorneys said they believed jurors would have cleared him of all charges had they seen the full version and heard arguments that the food wasn't adulterated or misbranded.

"His conviction was not consistent with the jury's acquittal on the other three counts," said Elizabeth Rich, one of Hershberger's attorneys.

The dairy farmer was ordered to pay a $1,000 fine, plus $513 in court costs, for the hold-order violation. He had faced a maximum penalty of up to a year in jail and a $10,000 fine.

The fine was paid, but Hershberger wants the conviction overturned.

"In our view, he's a law-abiding citizen who has a criminal record now," Rich said.

State Department of Justice officials said they would review the appeal but would not comment on it.

Hershberger's attorneys, paid from the national Farm-to-Consumer Legal Defense Fund, said he was unfairly targeted for prosecution because he sold raw, unpasteurized milk to consumers.

For the most part, raw milk sales to the public are illegal in Wisconsin. It's an issue that has pitted people who believe milk straight from the farm has beneficial properties lost in pasteurization against state agriculture and public health officials who believe that unpasteurized milk can contain pathogens capable of causing severe illness.

The Hershberger case didn't address whether raw milk was safe. Some of that debate could come this fall when the state Legislature considers a bill that would legalize limited raw-milk sales.

Hershberger's trial gained a lot of national attention, partly because Wisconsin has more dairy farms than any other state, said Pete Kennedy, a Florida attorney and president of the Farm-to-Consumer Legal Defense Fund that represents raw-milk farmers.

Hershberger's buyers club, run from his Grazin' Acres farm in Sauk County, distributes raw milk and other food including butter, cheese, meat and poultry to the club's members.

Since the trial, membership has increased "very significantly," Rich said.

"I think it was in part from the publicity, and also because it raised awareness of the (raw milk) issue for people," she said.

One juror, who said she had never heard of raw milk before the trial, has since become a member of the club.

About Rick Barrett

Rick Barrett covers manufacturing, telecom and agriculture. He has received Best in Business awards from the Society of American Business Editors and Writers and was co-recipient of a Barlett & Steele award for investigative business journalism.